|Apart from the lawyers, who wins in family matters?|
Now Marilyn Stowe has also come up with a suggestion: that the costs rules in family cases be amended to return to the old 'loser pays winner's costs' system, thereby allowing family lawyers to take up cases on a 'no win, no fee' basis, with the losing party paying a costs order set at the judge’s discretion. "There is currently little risk in litigating", says Marilyn, "but if that risk were to return it would lead to lawyers being far more circumspect and reduce the number of cases reaching court."
The idea could perhaps reduce the number of cases reaching court and enable some previously legally-aided litigants to obtain representation, although like Nicholas Cusworth's idea it would only apply to financial remedy cases, where money or property is involved.
However, I have always had a problem with the idea of 'winning' in financial remedy cases. I know that under the old costs system plenty of costs orders were made, but it is not always easy to define exactly where the line between 'winning' and 'losing' should be drawn. Obviously, a 'no win, no fee' system requires such a line in all cases.
OK, where it is a straightforward case of assets totalling £x, and the applicant seeking y% of £x, then it can be clear at the end of the case whether they have achieved y% or not. However, applicants often do not seek such a simple outcome - they will seek a proportion of the family home, a proportion of the other party's pension and a proportion of other assets, etcetera. They may also seek maintenance. Very rarely will they 'win' in each instance. If, for example, they get what they want on one out of two assets, have they 'won'?
Further to this, we are of course envisioning a Brave New World full of litigants in person, and even if one party is represented, the other party may not be. My experience of litigants in person suggests that they may just not know what they want, or whether the other party's claim is reasonable - simply continuing with the litigation so as to seek their 'day in court', when the court will make the decision for them. Without knowing what they want, how can one say at the end whether they have won or lost? I suppose there may be quite a few cases where the husband (for instance) will say that "she's not entitled to a penny", but if she gets a penny, does that mean he should pay her costs?
I don't wish to put a damper on things (we could certainly do with some ideas to fill the legal aid gap), and perhaps there is a place for 'no win, no fee' in family cases, but I'm just not sure of how it would work.
The other matter, of course, is that we would have to put up with yet more of those 'no win, no fee' adverts on television...